Having a reason to arrest someone is one of the most important tenets in our legal system.  We don’t want to live in a world where the police randomly stop people as they go about their business.  Worse yet is if the police target certain groups and stop them in the hopes that they may be doing something wrong.  The idea is that the police should have “probable cause” to stop someone or pull someone over.

With driving, it is fairly easy to find a reason to pull someone over.  We frequently go over the speed limit, glide through a stop, change lanes without signaling, or find ourselves blocking an intersection in city traffic.  We also have expired tabs, or a brake light that is out.  So any of us can be legally pulled over for investigation of a traffic infraction.  But what if it changes suddenly into a criminal investigation?

One argument that defense lawyers make in these kinds of pullovers where there doesn’t really seem to be enough of a reason to switch to a criminal investigation, is that it was a “pretext stop”.  They argue that a police will find someone they want to pull over, then find some pretext to pull them over, and then look for signs of crime such as drinking and driving, or an illegal weapon.

I was interpreting for such a case, and the argument then revolved around how long the police detained the individual, and whether there was coercion or pressure on the person to stay, before he was formally detained.  I believe they were waiting for a backup police who was bilingual, so they asked the suspect to just stand by, and he agreed.

The judge ultimately ruled that the detention was not unreasonably long, thus it was not in fact an arrest.  She further ruled that the possibility of coercion (the fact that the suspect may have felt pressured to stay) does not mean that whatever the suspect said was a “coercive statement” and thus could be suppressed.  In this case, before he was arrested, this suspect decided to chat in his broken English about his girlfriend leaving him and his subsequent beer drinking.

Why does it matter when the arrest happens?  Well, for a very good and important reason.  Anything you say after you are arrested – but before you are read your Miranda warnings (you have the right to remain silent, etc.) canNOT be used against you.  But anything you say before you are arrested can.   At least in broad terms, that is the concept.  You do not need to be told of your right to remain silent unless and until you are arrested, and until then you are theoretically free to go.

The problem defense attorneys have with a pretext stop is that their clients are getting pulled over for a minor infraction, say a turn signal, when the police all along hope to investigate for a DUI, but they have no reason to suspect it, just a hunch.  So they pull someone over for a minor traffic infraction, in order to investigate a crime without probable cause to do so.

There is a lot of push and pull about this in the pretrial motions before each case is set for trial.  If the defense is able to suppress enough of the key evidence, the prosecutor may have to offer a better deal, or even drop the charges.  If the prosecutor is able to admit the damning evidence, the defense attorney may urge their client to take whatever deal is on the table in order to avoid the harsher consequences of trial.

Most judges in my area tend to make sure the United States Constitution is honored and people are not coerced to testify against themselves, even if it means somebody gets a free ride.  As famous common law scholar William Blackstone wrote back in 1765, a dozen years before the United States was born:  “All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer.”

Because I struggle with this concept, I must add John Adam’s 1770 explanation of why it must be so: “We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer. The reason is, because it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security whatsoever.”